P. v. Garcia

Filed 3/15/06 P. v. Garcia CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Thomas L. Bender, Judge.

Kieran D. C. Manjarrez, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, John G. McLean and Mark A. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

At a Father's Day celebration in June of 2004 appellant stabbed the boyfriend of the party host's daughter with a broken beer bottle. A jury found appellant guilty of assault with a deadly weapon or instrument or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)).[1] The jury also found true a special allegation that appellant personally used a deadly weapon (§ 12022, subd. (b)(1)) and found not true a special allegation that appellant personally inflicted great bodily injury (§ 12022.7, subd. (a)). The court sentenced appellant to a four-year prison term – a three-year middle term for the section 245, subdivision (a)(1) offense plus one year on the section 12022, subdivision (b)(1) enhancement. On this appeal appellant raises five contentions of error. He contends that the trial court: (1) erroneously â€